6.  The applicant was born on 14 July 1946 and lives in Skopje.
7.  On 22 January 2008 the Parliament of the respondent State passed the Additional Requirement for Public Office Act (Закон за определување дополнителен услов за вршење на јавна функција – hereafter “the Lustration Act”), which entered into force eight days later.
8.  The Lustration Act introduced non-collaboration with the State security services in the period between 2 August 1944 and 30 January 2008, the date of the Act’s coming into force (hereafter “the screening period”), as an additional requirement for the holding of public office. In other words, collaboration with the State security services in that period became an impediment to holding public office.
9.  All incumbent public officials and candidates for public office were required to submit a statement that they had not collaborated with the State security services in the above screening period (hereafter “the declaration”). The Lustration Act was to apply for five years from its entry into force (hereafter “the temporal scope”).
10.  The Lustration Act also provided for the establishment of a Facts Verification Commission (Комисија за верификација на факти – hereafter “the Lustration Commission” or “the Commission”), which had to be set up within sixty days of the Act’s entry into force. Its task was to examine the veracity of the public officials’ declarations. The members of the Commission were elected by Parliament on 15 January 2009. The Commission became operational in late March 2009.
11.  On 22 May 2009 amendments to the Lustration Act entered into force, adding several provisions primarily in respect of the functioning of the Lustration Commission and the status of its members. Also, the temporal scope of the Lustration Act was extended, from the five years initially envisaged following the Act’s entry into force, to ten years following the election of the Commission.
12.  On 27 January 2010, following petitions for abstract constitutional review, the Constitutional Court accepted the initiative and decided to institute proceedings to review the constitutionality of several provisions of the Lustration Act, including the one extending the screening period (see paragraph 8 above) beyond the date of adoption of the current Constitution of the respondent State (17 November 1991). It also suspended application of those provisions until it had decided on their compatibility with the Constitution.
13.  Fierce debate ensued, in which a number of politicians severely criticised the Constitutional Court’s decision in the media (see the European Commission’s Progress Report of 9 November 2010 in paragraph 109 below). For example, on 29 January 2010 the coordinator of the ruling party’s Parliamentary group made the following statement:
“Having in mind that the Constitutional Court’s current composition was appointed during the political zenith [of the former President of the Republic], [the ruling party] believes that cancelling lustration’s scope of application after 1991 has one goal only: to prevent the Lustration Commission and the citizens of Macedonia from learning whether [the former President of the Republic and his party] officials, who controlled the secret services, actually used those structures against their political opponents.”
14.  On 4 March 2010 the same MP stated:
“We are convinced that the Constitutional Court wants to harness Macedonian democracy and keep it hostage [bound up] in the web woven by secret service collaborators. People from the secret services are striking back, together with their collaborators who continued to ‘snitch’, violate human rights, destroy people’s lives and wage war against political opponents, even after 1991.”
15.  By a decision of 24 March 2010 the Constitutional Court invalidated certain provisions of the Lustration Act as unconstitutional. In particular, that court held that to extend the screening period beyond 17 November 1991, the date of adoption of the present Constitution, was unconstitutional. In other words, it was incompatible with the Constitution to provide collaboration with the State security services after that date as an impediment to the holding of public office.
16.  Some other provisions were also held contrary to the Constitution, namely those providing for the publication of collaborators’ names in the Official Gazette, automatic lustration in cases where no declaration had been submitted, and those making it possible to introduce collaboration as an impediment to membership of governing bodies of political parties, civic organisations and religious communities by internal regulations of such non-State entities (see paragraphs 69-71, 78 and 81 below).
17.  On the same date, 24 March 2010, the applicant, as the President of the Constitutional Court at the time, made the following statement to the media, in which he, inter alia, commented on the Parliament’s written response to the petitions for constitutional review in the proceedings before the court:
“The response is seventeen pages long and provides arguments on the necessity to pursue lustration, motives behind the [Lustration] Act’s adoption, implementation procedure and the like, but my impression is that no legal arguments were presented ... I believe that the response should be made public. For example, Parliament, in its response, states ‘in constitutional and legal terms, one cannot contest the Act’s temporal scope’.... That cannot be considered a legal argument.”
18.  By a decision of 29 September 2010 the Lustration Commission established that the applicant had submitted a false declaration and that accordingly he did not meet the additional requirement for public office (the course of the proceedings in the applicant’s case and the surrounding circumstances are described in detail in paragraphs 24-58 below).
19.  On 25 February 2011 the Lustration Act was amended for the second time, and certain provisions that were similar to the invalidated ones were reintroduced. The provision delimiting the screening period in which the collaboration with the State security services was an impediment to the holding of public office was re-worded in such a way that the end-date remained open. The personal scope of the application was extended to cover former officials and officers in organisations performing duties of a public nature requiring them to submit declarations of non-collaboration.
20.  On 28 March 2012 the Constitutional Court again invalidated several provisions of the Lustration Act, as amended by the 2011 Amendments (see the preceding paragraph 19 above). In so doing, the Constitutional Court held that its earlier decision (see paragraph 15 above) had been circumvented in view of the content of those amendments.
21.  On 17 July 2012 the Lustration Act was repealed by the entry into force of the new Lustration Act (Закон за определување на услов за ограничување за вршење на јавна функција, пристап на документи и објавување на соработката со органите на државната безбедност). In 2014 the Constitutional Court refused to institute proceedings for abstract constitutional review of the new legislation.
22.  While the 2008 Lustration Act was in force the Lustration Commission established in a total of eleven cases that the declarations on non-collaboration were false, and that therefore the person who had submitted them did not meet the additional requirement for public office. Apart from the applicant, who was the only incumbent official whose declaration was found to be false, those cases concerned eight former officials and two journalists.
23.  On 1 September 2015 the Act Repealing the 2012 Lustration Act (Закон за престанување на важење на законот за определување на услов за ограничување за вршење на јавна функција) entered into force. According to the Act the Lustration Commission is allowed to complete, within two years, any ongoing proceedings in which a decision has already been issued, but may no longer institute new ones. Pending lustration proceedings in which the Commission has not issued a decision must be discontinued. Section 3 of the Act provides that a person in respect of whom the Commission has established that he or she has collaborated with the State security services is banned from holding public office for the period of five years from the time the Commission’s decision to that effect becomes final.
24.  The applicant was a judge of the Constitutional Court between 2003 and 2011, when he was dismissed as a result of the lustration proceedings described below (see paragraphs 25-58). The applicant’s case was the first lustration case in the respondent State. During the lustration proceedings and at the time of his removal from office (see paragraph 56 below) the applicant was also the President of the Constitutional Court.
25.  On 3 September 2009, the applicant, as a public official, submitted to the Lustration Commission a declaration of non-collaboration with the security services, as prescribed by section 6 of the Lustration Act (see paragraph 67 below).
26.  On 5 July 2010 the Commission, by a letter classified as confidential, requested the State Archive to provide it with direct access to all the data, files and documents available in respect of the applicant.
27.  On 12 and 22 July 2010 the State Archive informed the Commission that a personal record of the local branch of the secret police of the former Yugoslavia (hereafter “SFRY”) existed in respect of the applicant, and invited the Commission to consult the documentation.
28.  On and around 15 September 2010, various media, despite the confidential nature of the proceedings before the Lustration Commission, reported that the Commission had allegedly identified a judge of the Constitutional Court as a collaborator with the State security services. In the following days the media continued to speculate that the identified collaborator was actually the President of the Constitutional Court.
29.  During its deliberations held in private on 16 September 2010, the Lustration Commission found that the applicant’s declaration had not been in conformity with the evidence at its disposal. The applicant was notified of the Commission’s findings on 21 September 2010 with a note classified as “strictly confidential” (строго доверливо). He was also instructed that, under the Lustration Act, he could, within five days, submit oral or written observations to the Commission’s findings. The applicant replied and requested a public session on 24 September 2010.
30.  On 22 September 2010 the daily Utrinski vesnik published an article entitled ‘Judge asks to speak publicly about being a ‘snitch’’. The relevant part of the article reads as follows:
“Utrinski ‘unofficially’ learns that a Constitutional Court judge allegedly sinned during his high-school days, in the capacity of a member of a branch of an organisation called ‘United for Macedonia’ that was advocating unification of ethnic Macedonian territories. Once discovered, under pressure from the police, he was forced to disclose the names of the organisers.”
31.  On 23 September 2010 the Commission notified the applicant that the session would be held on 27 September, that it would be public “when classified information was not being used” and that he could access the entirety of the classified documentation at the Commission’s disposal for one hour before the session.
32.  On 24 September 2010, in an open letter broadcast in the media and addressed to “opponents of the lustration”, the Prime Minister of the respondent State (signed in his capacity as president of the governing party) stated, inter alia, that the Commission had publicly revealed that a member of the Constitutional Court had been a collaborator with the State security services and that it was now crystal clear that the collaborator sitting in the Constitutional Court, nominated by the former president of the Republic, and controlled by other centres of power, had invalidated a number of the legislative reforms of his Government. The letter was a response to his political opponents, who claimed that he was hindering the lustration process. The Prime Minister described their strategy in the following terms:
“Attack the [ruling party] to [protect] the Constitutional Court, whose member the [Lustration] Commission had publicly declared a collaborator with the secret services. Accuse [the Prime Minister] of hindering the lustration [process] so that [he] would not accuse you of it becoming crystal clear that the secret services’ collaborator in the Constitutional Court scrapped a whole range of [the Prime Minister’s] reforms, and that [the Prime Minister] would not pose a question why [the former President of the Republic] nominated as judge of the Constitutional Court that person who was a collaborator with the [secret] services, and what is that centre of power which still controls the ‘collaborator’.”
“Нападни го ВМРО-ДПМНЕ, за да го затскриеш Уставниот суд за чиј член Комисијата јавно се изјасни дека бил соработник на тајните служби. Обвини го Груевски дека ја кочи лустрацијата, за да не те обвини Груевски дека стана кристално јасно дека соработник на тајни служби од Уставниот суд му сруши цела палета на реформи и за да не постави прашање зошто Бранко Црвенковски го предложи за судија на Уставен суд тоа лице кое било соработник на службите и кој е тој центар на моќ кој се уште го диригира ‘соработникот’.”
33.  On 24 September 2010 the applicant objected to the imposed time constraints regarding his access to the classified documents in the possession of the Commission (see paragraph 31 above). The Commission, in its turn, immediately informed him that he could consult his personal record compiled by the secret police of the SFRY at the State Archive as well as the documents at the disposal of the Commission, in the coming days until the session. The applicant consulted the documents at the Commission on the same day.
34.  Those were the documents forming the applicant’s personal record compiled by the local branch of the SFRY secret police. The record contains around fifty pages of typed reports and forms. It appears from the record that the applicant was on 27 and 28 March 1964 interrogated by the secret police in connection with his involvement in a high-school nationalist group, and was registered as a collaborator under the pseudonym “Lambe”. The “proposal for registration” of 19 May 1964, signed by an inspector, I.K., states that the applicant was approached about collaboration with the secret police and that “he gladly agreed to it, [saying] that he would do anything for the [security] service, as long as his father and the school do not find out”. A “questionnaire” with a handwritten date of 10 February 1965, states, inter alia, that the applicant was recruited on the ground of “compromising material” and that he had not received any material benefit in exchange for his collaboration. That the applicant was recruited on the ground of compromising material is also noted in another questionnaire of 10 January 1968 where, next to the pseudonym “Lambe”, there is a handwritten note “and Lamda”. The record contains a number of reports of various dates between 1964 and 1966, composed mostly by the inspector who relied on “Lambe” as a source of information, about conversations and statements of some high-school and university students on certain political and social issues at the time. “Lambe” provided the information mostly verbally; only a few reports in the file are based on his letters (which were not in the file). There are also copies of two payment receipts dated May and December 1965 and a proposal of 1983 for deregistration of the collaborator “Lamda”. The deregistration referred to a person with the applicant’s name but who in the 1970s was a student at the Technical Faculty, and who in 1983 was working in the municipal branch of the Communist Party.
35.  On 27 September 2010 the Commission held a public session on its premises, in a meeting room of around twenty square metres. A large number of media representatives were present.
36.  During the session, the applicant denied the Commission’s initial findings, calling into question the veracity of his declaration. He disputed the authenticity of the documents the Commission relied on, as he had neither composed nor signed them, and claimed that the reports contained therein had been forged, or taken from others’ and added to his personal record. He further denied the authenticity of the signatures on the two payment receipts, which indicated that he had received money for his collaboration. He alleged a confusion regarding the two different collaboration pseudonyms (“Lambe” and “Lamda”) appearing in the file, and the identity behind them. He also claimed that the episode from the time when he had still been a minor and had been coerced into having contact with the secret police, due to his involvement with a high-school nationalist group, had been misused.
37.  On 28 September 2010 the Constitutional Court responded to the Prime Minister’s statement of 24 September 2010 (see paragraph 32 above) by means of an open letter. The relevant part of that letter reads as follows:
“The Constitutional Court finds that this attack is the culmination of the continual attacks on the Constitutional Court. The court therefore points out that the Prime Minister went beyond powers conferred on him by the Constitution, because he has no right to assess the legitimacy of decisions taken by the Constitutional Court, but rather [was obliged] to ensure their unhindered implementation. The court considers that his actions indicate [either] profound ignorance, or total disrespect for the constitutional order, to the point of undermining it.
Using a single [pending] case ... to stigmatise a collective body reminds us of events from the past that must not be repeated in a democratic society.”
38.  By a decision of 29 September 2010 the Commission held that the applicant’s objection to its initial findings of 16 September 2010 (see paragraph 29 above) was not in accordance with the information available, and that consequently he did not fulfil the additional requirement for holding public office. The decision was based on the applicant’s personal record, and contains a list of twenty-two documents. It summarised the contents of the documents and stated that the applicant had begun collaborating in 1964 and had been deregistered in 1983, that he had provided information on students whose activities were monitored by the security service for political reasons and that, as evident from the two payment receipts, he had in 1965 been paid for the collaboration. The relevant part of the Commission’s decision reads as follows:
“... From the data available in the personal record compiled by the [secret police of the SFRY] it was established that in the rubric ‘collaboration relationship’ it is stated that [the applicant] is a collaborator of the [secret police] recruited on the ground of compromising material. It was further established that [the applicant] started his collaboration with the [secret police] as early as 1964 as a high-school student who, when it was proposed to him that he be registered in the collaborators’ network, stated that ‘he gladly accepted the collaboration and would do anything for the service’, and that he was allocated a pseudonym under which he later delivered all the information to the [secret police]. In 1965 he officially became a collaborator of the [secret police]. In the documentation, in ten reports drafted by the Internal Affairs Unit in Strumica, on a number of pages, [the applicant] under his pseudonym appears as a source giving information about his schoolmates, which [information] was used by the [secret police] as operational material on the activities of high-school youth in Strumica. From four reports, it is apparent that also later on, as a student in Skopje, he gave information about students of various faculties, of which in the personal record there are five reports concerning a number of individuals whom the [secret police] monitored and had information that they were dissatisfied with the authorities in view of their weak interest in the situation of the Macedonians in the Aegean [in Greece] and Pirin [in Bulgaria] Macedonia, as well as for various wrongs committed against Macedonians in the western part of Macedonia. From the personal record it was also established that in 1965 the sums of 10,000 and 20,000 [Yugoslav] dinars had been paid to him. His collaboration officially ended in 1983 when he was employed in the Municipality of Karpoš and was deregistered from the active collaboration network.
The Commission took into account the oral observations provided by [the applicant], in which he expressed his disagreement with the Commission’s findings.
The Commission considers all this information and the files and documents contained in the [applicant’s] record relevant. [It further] considers that that the [applicant’s] declaration [of non-collaboration] submitted to the Commission is not in line therewith [the information, files and documents] and that therefore [the applicant] does not meet the additional requirement for public office in accordance with section 2(1) [and] section 4(4) of the [Lustration] Act.”
39.  The Commission’s decision was served on the applicant on 30 September 2010 and classified as “strictly confidential”.
40.  In an exchange of correspondence on 1 October 2010 the applicant requested that the Commission provide him with a copy of the file for the purposes of seeking a judicial review of its decision. The Commission informed him that they only had copies (препис), but that the originals were available in the State Archive; they advised him to look for them there. Upon the applicant’s request of the same day, the State Archive, either on the same day or on 4 October 2010, provided him with a copy of his personal record.
41.  On 5 October 2010 the applicant pointed out inconsistencies between the files provided to him by the State Archive, the inventory of the documents contained in his record, and the documentation the Commission relied on in its decision. The State Archive responded that they had simply received the personal record as it was, and had listed the documents therein by title without inspecting their contents, as they had not been authorised to do so. Finally, they invited the applicant to consult the contents of his personal record under their supervision.
42.  On 8 October 2010 the applicant brought an action for judicial review in the Administrative Court against the Commission’s decision. He complained that the proceedings before the Commission had been unfair and of errors of fact and law. In particular, he complained that the session before the Commission had been held without Rules of Procedure having been adopted, which the Commission should have done ex lege before commencing the proceedings. The public session had not been, as initially planned, followed by proceedings in camera (see paragraphs 31 and 35-36 above), and he therefore had not had an opportunity to fully present his arguments concerning the classified information in the file.
43.  The applicant further objected that the time-limit for the preparation of his appeal had been effectively reduced, since he had received the copies of the documents from the State Archive only on 5 October 2010 (see paragraphs 40-41 above), and that there had been obvious discrepancies between the files of the State Archive and the ones of the Commission that he had earlier had access to. The applicant denied the authenticity of the documents in his personal record and suggested obtaining an opinion from an expert in graphology (графолошко вештачење) as regards the signatures on the two payment receipts by comparing them with the letters he had allegedly sent to the inspector of the secret police, to which letters reference was made in the record but which were not available in the file. He also submitted that his identity had been confused with that of the person behind the pseudonym “Lamda”, given that in 1983 he was already a law graduate and was working for the Skopje City administration and thus was not working at the municipal branch of the Communist Party, nor had he ever studied at the Technical Faculty as the record indicated (see paragraph 34 above). He proposed additional evidence, asked that a public hearing be held, and requested leave to invite an expert assistant (стручен помагач), in particular, a certain Mr I.B., a university professor of State security and intelligence and retired staff member of the SFRY secret police, with a view to clarifying the methods and practices of those police concerning the opening and the maintenance of records.
44.  In its reply, the Commission firstly listed and made reference to twenty-two documents, and then also mentioned “forty-seven written documents”, on which it based its decision. The Commission’s reply was classified as “strictly confidential”.
45.  On 26 October 2010 the Administrative Court held a public hearing in the presence of the applicant and the President of the Commission. The Commission lodged an objection about the Administrative Court’s competence ratione materiae to examine the case.
46.  On 2 November 2010 the court held another hearing, at which the Commission withdrew its objection regarding the court’s jurisdiction (see the preceding paragraph 44 above), the expert assistant I.B. (see paragraph 43 above) gave his testimony and the evidence was examined. The public was excluded from the part of the hearing in which confidential material (the applicant’s personal record) was under consideration.
47.  By a judgment of 8 November 2010 the Administrative Court dismissed the applicant’s action. In its judgment, this court listed twenty-seven documents, and found the Commission’s files identical to the originals received from the State Archive. The Administrative Court held that the Commission had neither been authorised nor obliged to determine the authenticity of certain evidence that could only be established by an expert opinion (вештачења) in criminal proceedings. It also held that the Commission did not conduct any adversarial proceedings and could admit as fact only the records compiled by the State security services. The applicant’s proposal to obtain an expert opinion with a view to checking the authenticity of the signatures on the payment receipts was rejected. The Administrative Court concluded that it had been immaterial (беспредметно) to determine whether the payments had been received by the applicant, as other (non-pecuniary) benefits could suffice for someone to be deemed a collaborator in terms of the Lustration Act. The judgment also took into account the testimony of the expert assistant I.B. Parts of the judgment were classified as “strictly confidential”.
48.  The presiding judge was a certain Ms L.K., who was shortly afterwards, in March 2011, promoted to the newly established High Administrative Court.
49.  The relevant part of the Administrative Court’s judgment reads as follows:
“... The plaintiff’s [the applicant’s] representative reiterated the arguments advanced in his action for judicial review, and expanded on them by stating that the Commission’s decision was ill-founded ... [He argued that] the Commission had not assessed the written evidence, because there was none. [In particular,] there was no statement from the plaintiff that he had agreed to collaborate with the [secret police], there was no written consent from him in this regard, and there was no written decision of the [secret police] in which the plaintiff’s consent to collaboration was accepted. Moreover, the Commission had made only a mechanical analysis by quoting and paraphrasing the documents available in personal record no. 12736 and on that basis had reached the wrong conclusion, failing to establish the facts ...
In view of the complexity of the case and for the purposes of clarification, the [Administrative] court, upon a proposal of the plaintiff, heard I.B. from Skopje in the capacity of an expert assistant (стручен помагач). The court also consulted (изврши увид) and compared the plaintiff’s personal record available in the State Archive with the copy of the same record delivered to the plaintiff.
The court, having assessed the [plaintiff’s] arguments in the statement of claim, the [Commission’s] reply [thereto], and the submissions made by the expert assistant I.B., [and] having examined the impugned decision within the scope of the action and in terms of section 37 of the Administrative Disputes Act, found:
The action is ill-founded ...
According to section 10 of the [Administrative Disputes] Act, the administrative decision could be contested if the law was wrongly applied ... or if the proceedings which preceded the contested decision were not conducted in accordance with the rules of procedure, and in particular, if the facts were not established correctly, or if the facts were established correctly but assessed wrongly ...
According to section 4(4) of the [Lustration] Act, collaboration, within the meaning of that Act, is conscious, secret, organised and continuous cooperation and activity with the State security services, established by a written document, in the a capacity of a secret collaborator or secret informant (hereafter ‘secret collaborator’) with a view to collecting information ... regarding certain persons, in violation of [their] basic rights and freedom on ideological-political grounds, as a result of which a material gain or other benefits in employment or career advancement had been obtained [by the collaborator] ...
Relying on the above, the court found that the Commission, acting within its competence ... and after having correctly conducted the fact-verification proceedings, made a lawful decision ...
It appears from the files that the plaintiff, on the basis of a written document, consciously, secretly, continuously and in organised way collaborated with the [secret police], which collected information that were subject to processing, storage and use ... Such collaboration is apparent from the reports ... which could be found in the original personal record kept at the State Archive. Having in mind that the Commission only checks the facts concerning collaboration or non-collaboration with the State security services, and given that this [fact-verification procedure] is not an adversarial procedure, the records created by the services and their legal predecessors are to be accepted as facts [thus as reliable evidence] ...
In this court’s assessment, the argument that the plaintiff was prevented from active participation in the proceedings before the Commission ... is ill-founded, since the Commission provided him with access to all the evidence.
Regarding [the plaintiff’s] argument that ... the Commission’s session had been held without Rules of Procedure [having been adopted beforehand] ... this court finds it irrelevant ... The Rules are an internal regulation of the Commission and [thus only] regulate its internal functioning ... and not the fact-verification procedure [which] is prescribed by the [Lustration] Act.
This court finds ill-founded [the plaintiff’s] complaint that he had not been given an opportunity to contest the [factual findings of the Commission]. [He argued in particular that] ... the [Commission’s] session had ended after its first part, at the moment when he had expressed his disagreement with the ‘facts’ [underlying] the [Commission’s] findings ... in respect of which he had [also] made written submissions. [In his view] the Commission was obliged to hold a hearing, and not to treat the case as if no observations had been provided in accordance with section 29. [Such complaints] have no support in the evidence available in the file. As evident from the file, the Commission on 27 September 2010 held a public session in the part in which no classified information was under consideration. Having in mind that earlier, on 24 September 2010, the plaintiff had consulted the files and familiarised himself with their content, he had had the opportunity to provide his own observations at the session.
The court also finds ill-founded the plaintiff’s argument that the reports [contained in his personal record], in legal terms, could not be relied on to establish the facts, since they had many shortcomings, both formal and substantive, in particular none of the ten reports had been signed by an authorised person of the [secret police], no letter allegedly sent by the plaintiff had been appended to the reports, ... none of these reports had been entered in the official records of the [secret police], and all reports quote ‘Lambe’ as a source of information, while the Commission [cites] another pseudonym, ‘Lamda’. [The court finds that argument by the plaintiff ill-founded because] the operation of the [secret police] was clarified by the expert assistant at the public hearing, who explained that it had had its own operational methodology for the purpose of gathering information, that was then subject to further processing, collection and use ... The court finds that assessment of the methodology of the [former secret police] is not in the competence of the Commission.
The court did not accept the plaintiff’s complaints that he was recruited as a collaborator while still a minor, because it is apparent from the evidence that he entered into collaboration and gave reports as an adult.
The court finds ill-founded the [plaintiff’s] arguments about errors of fact, [in particular those where he complains] that the Commission did not take any evidence to establish whether the signatures on the payment receipts were identical with each other as well as with the plaintiff’s signature, which could have been easily established by obtaining an opinion from an expert in graphology, those whereby he calls into question the authenticity of the reports he received from the State Archive and [the veracity of] of their content, those [where he argues] that ... the [secret police] registered him as a collaborator on the basis of bogus (спакувани) reports which were planted (подметнати) in his file and that he was not aware of nor had he consented to that [registration], as well as that there were obvious misinterpretation of the facts, since the file on a minor oppressed for his Macedonian nationalism had been transformed into the personal record of a secret collaborator. This [the court’s dismissal of these complaints] comes as a result of the fact that the Commission, after checking and verifying the data that was made available to it, correctly established that the plaintiff ... had been registered as a secret collaborator ... The Commission was establishing the facts was neither authorised nor legally bound to take evidence to establish the facts that could be established only through expert reports in criminal proceedings. ... The procedure is not adversarial and the records of the services of the former system are to be accepted as genuine [, meaning as reliable] evidence. The plaintiff in his submissions pointed to possible criminal offences which, in addition to the Criminal Code, are also sanctioned by sections 36 and 37 of the [Lustration] Act. The proceedings before the Commission do not bar the plaintiff from initiating other proceedings in which he could prove his allegations.
On the other hand, after checking the plaintiff’s personal record, the court established that only a few reports were delivered in writing, and that most of the reports were provided through direct contacts.
In view of the above the court did not grant the request ... for the letters written by the plaintiff mentioned in [some] reports drafted by the inspector of the State security service to be obtained with a view to obtaining an opinion from an expert in graphology on the signatures and the handwriting on the payment receipts.
It is also immaterial whether payments were made or not, since this is only one of the conditions for establishing that collaboration took place, bearing in mind that section 4(4) of the [Lustration] Act, when stipulating what is considered collaboration, states that [not only] material gain [but also] other benefits or career advancement [may suffice].”
50.  In his appeal of 25 November 2010 to the Supreme Court, the applicant reiterated his earlier arguments and expressed misgivings about the overall fairness of the proceedings and errors of fact and law. He pointed out that the number of pages and the inventory of the documentary evidence quoted in various acts produced by the State authorities had differed. He further complained that the Administrative Court had completely misinterpreted the submissions made by the expert assistant, and annexed an additional written statement by I.B. He also objected to the Administrative Court’s finding on the Commission’s powers, and complained that the Administrative Court had therefore failed to fully establish the facts, and had not ordered any expert opinion to establish or otherwise the authenticity of the documents and signatures on the payment receipts. The Commission submitted a reply to the applicant’s appeal, whereupon the applicant provided a response to the Commission’s reply.
51.  By a judgment of 2 March 2011 the Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Administrative Court. The Supreme Court stated, inter alia, that it had checked the “original documentation” and concluded that the facts had been correctly established. It further addressed and analysed the applicant’s remaining complaints, and concluded that they were of no relevance and could not produce a different outcome. As for the authenticity of the documents, including the signatures on the receipts, the Supreme Court dismissed the applicant’s arguments, finding that no formal procedures existed at the time when these documents were produced.
52.  Judge V.S. – who would later be appointed a judge of the Constitutional Court to fill the vacancy caused by the applicant’s dismissal (see paragraph 57 below) – sat in the panel and, according to the applicant, also acted as a rapporteur (известител) in the case.
53.  The relevant part of the Supreme Court’s judgment reads as follows:
... From the evidence taken during the proceedings, primarily the reports in the personal record established in respect of the appellant, it can be indisputably concluded that he, on the basis of a written document, consciously, secretly, continuously and in an organised manner collaborated with the [former secret police]. Relying on the statements of the secret collaborator – the appellant – the [secret police] gathered information that was processed, stored and used by the [secret police] ... In such a way, the human rights of those people [who were then followed by the State security service] were violated on political or ideological grounds.
Bearing in mind the definition of collaboration contained in the [Lustration] Act, the Administrative Court correctly concluded that the appellant had at the material time the status of a secret collaborator or informant.
The arguments adduced in the appeal regarding discrepancies between the data obtained from the State Archive and those relied on by the Commission, whereby the appellant disputes the authenticity of the evidence, are ill-founded.
In the Supreme Court’s opinion, the facts established by the first-instance court are correct and complete, as they are based on careful and thorough assessment of every piece of evidence separately and of all the evidence taken together ... Assessing the complaints regarding the facts, the Supreme Court also checked the original documentation and finds these complaints ill-founded, since the appellant did not submit any evidence that could call into question the facts as established by the first-instance court.
The Supreme Court finds irrelevant in respect of the possibility of a different outcome the complaints that the applicant was not a collaborator but an oppressed person on whom a political file was opened because of ideas he had, as a minor during high-school days, on the independence of the Macedonian people.
Specifically, the appellant was as a high-school student initially registered by the [secret police] for hostile activities and Macedonian nationalism. However, he continued to collaborate with the service and was approached about being registered in the network of collaborators. In 1965 the appellant was officially registered as a collaborator, when he had already reached the age of eighteen. From the documents available it is apparent that the applicant collaborated with the State security services as an adult.
The appellant’s submissions that he never consented to collaboration and that there is no evidence of registration or deregistration, could not lead to factual findings different from those already established by the first-instance court.
According to the expert assistant’s statement at the public hearing before the Administrative Court, the consent of the collaborator was in no way needed, given the secrecy of the procedure. The proposal for deregistration is in the name of Trendafil Ivanovski, with an identical file number to that under which he had been registered as collaborator. These data correspond with what is already recorded in various documents and about which there is no doubt that they refer to the appellant. According to the Supreme Court, these data could not be disregarded just because the pseudonyms do not match.
The complaints that the reports composed by the [secret police], based on the information provided by the appellant, could not be regarded as [reliable evidence], are ill-founded. The Supreme Court finds that the procedure for receiving information was not strictly formalised. The reports were, as clarified by the expert assistant, usually given verbally. From the above, it is apparent that to be considered as genuine, it was not necessary that the content of the record, or of the report composed by an authorised person of the [secret police], be supported by a written statement by the collaborator.
The appellant denies the authenticity of his signature on the payment receipts.
The Supreme Court finds that, in a situation in which no rules (правилник) for payment existed, given that, as stated by the expert assistant, the payments were usually made in cash, it would suffice to have the name of the collaborator mentioned as a recipient [of the money], to conclude that material gain was obtained.
As the first-instance court correctly and fully established the decisive facts it also correctly applied the substantive law when it dismissed the appellant’s action.”
54.  The applicant was served with the Supreme Court’s judgment on 9 March 2011.
55.  On 11 March 2011, the Commission concluded that its decision of 29 September 2010 had become final.
56.  On 11 April 2011, relying on the Lustration Act and the Commission’s conclusion of 11 March 2011, the Parliament acknowledged that the applicant had not fulfilled the additional requirement, and accordingly dismissed him from the office of judge of the Constitutional Court, despite the experts’ debates about the constitutionality of such an action. On the same day, the Parliament’s decision was published in the Official Gazette.
57.  On 14 April 2011, during its last session before early elections, the Parliament appointed Judge V.S. (see paragraph 52 above) as a judge of the Constitutional Court to the position vacated by the applicant’s dismissal.
58.  The proceedings were closely followed by the international community present in the respondent State, and were referred to in various reports, most notably the European Commission’s Progress Report of 9 November 2010, which states that the ongoing lustration proceedings against the applicant “have raised concerns about pressure on the independence of the judiciary” (see paragraph 109 below). The United States Department of State Human Rights reports of 2010 and 2011 also made references to the applicant’s case and the tensions between the Government and the Constitutional Court.
59.  Meanwhile, on 8 March 2011 the Commission filed a criminal complaint with the Skopje Public Prosecution Office against the applicant alleging that by submitting a false declaration of non-collaboration with the State security services he had committed the criminal offence of submitting false evidence defined in Article 366a of the Criminal Code (see paragraphs 79 and 97 below).
60.  On 29 April 2011 the public prosecutor dismissed the criminal complaint, finding no elements of the offence in question. In her reasoning, the public prosecutor held in particular that in the proceedings before the Commission evidence was not taken or assessed in an adversarial manner or in accordance with the principle of immediacy, as only the official records of the State security services were used as relevant for the outcome of the proceedings. The applicant’s declaration thus did not constitute evidence but an act giving rise to the lustration proceedings.